Johanna Westeson - The ICHRP

By contrast, in Baczkowski, the Court reiterated that only limited restrictions to freedom of
assembly are allowed in a democratic society and made clear that this applies to sexual
rights advocacy equally as to other claims – thus making explicit the protection of sexual
expression as a tool for political action under the Convention. It is further relevant that the
Court found a violation of the right to non-discrimination on the basis of sexual orientation
– for the first time applying this ground, as implied in Article 14, taken together with
Article 11, the right to assembly.
Finally, along the same vein, it is positive that the Turkish court has acknowledged that
sexual orientation may be inherent to a person’s identity and therefore worthy of protection
under the Turkish constitution. However, it is deeply problematic – and, in fact,
contradictory – that the court reserves the right of the state to dissolve the organization if it
would ‘encourage’ LGBT behavior. This latter statement shows a lack of real recognition
of the right to expression for persons of non-conforming sexual orientations or gender
identities.
8. SEX WORK
1. Introduction 867
This chapter examines how laws governing the exchange of sexual services for money or
goods (often called ‘sex work’ or ‘prostitution) influence the sexual health of persons in
sex work, as well as facilitate or prevent discrimination, abuse and violence against them.
States vary in how they approach prostitution or sex work in the law. 868 Many use criminal
law to prohibit various aspects of prostitution. Some countries penalize the sex worker,
making selling of sex an illegal activity. Other countries claim that sex work by nature is
related to men’s dominance over women and should be understood as part of the
phenomenon of male violence against women. In this view, the sex worker is seen as a
victim rather than as an offender. A few countries in Europe have, with this approach as
their point of departure, decided to penalize the customers instead of the sex workers.
867 Drawn in part from general WHO chapeau text elaborated by Alice M. Miller and Carole S. Vance.
868 The literature (English language) of the last two decades about prostitution law often characterizes legal
approaches to prostitution with a set of terms claiming to delineate essential categories: abolitionist;
prohibitionist; regulationist, as well as using the terms to decriminalize, to legalize, and to regulate. Despite
their ubiquity, these categories do not enable careful analysis. First, the categories suggest that there are clear
boundaries between ‘types’ of legal approaches, such that one can assign any national or local law to one
category. These assignments are in fact very problematic; for example, does one consider systems that
decriminalize the seller and criminalize the buyer “prohibitionist” or partial decriminalization? Further
analysis grounded in empirical research reveals that it is mistaken to call this decriminalization, even of the
seller, because in practice the person selling sex is not free of criminal surveillance. For example, sex
workers may be taken into custody in order to be questioned or to ensure their evidence in any prosecution of
the buyer. Furthermore, this taxonomy attends exclusively to laws governing the exchange of sexual services,
ignoring the many overlapping laws (found in other parts of the criminal code, such as statutes punishing
vagrancy or indecent conduct, as well as health codes, zoning and other administrative laws) that effectively
penalize sex work over and above the offences listed in the criminal code. Finally, even more confusion has
been engendered over the meaning and distinctions between ‘legalized’ and ‘regulated’ prostitution, as some
use the term ‘regulation’ to refer to prostitution-specific registration and surveillance schemes, while others
use the term to refer to any system in which the government plays a role in setting the conditions of work
(which may be comparable to state regulation of safety and health in restaurants or other service sectors). As
noted in the discussion in the text, different legalization schemes can be vary greatly in their promotion of
equality, autonomy and health, as well as in their impact on sexual health.
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